United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-2533

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Luebertha Ingram, *

*

Plaintiff-Appellant, *

*

v. * Appeal from the United States

* District Court for the Eastern

Shirley S. Chater, Commissioner * District of Arkansas.

of the Social Security *

Administration, *

*

Defendant-Appellee. *

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 Submitted: December 9, 1996

 Filed: February 25, 1997

___________

Before WOLLMAN, BRIGHT, and MURPHY, Circuit Judges.

___________

BRIGHT, Circuit Judge.

Luebertha Ingram appeals from the district court's order

affirming the denial of disability insurance benefits and

supplemental security income by the Commissioner of the Social

Security Administration (Commissioner). The district court found

substantial evidence to support the determination that Ingram was

not disabled and granted the Commissioner's motion for summary

judgment. We affirm in part, reverse in part, and remand for

further proceedings.

FACTUAL BACKGROUND
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Luebertha Ingram filed an application for disability insurance

benefits and supplemental security income on March 9, 1993. She

asserted an inability to work since 1990 due to back and leg pain

and migraine headaches. Ingram, who is in her late forties, was

previously employed as a factory worker and, until the onset of her

health problems, had a consistent work record.

Three doctors examined Ingram. Dr. D. J. Brewer, a chiropractor, examined Ingram prior to her claim for benefits. At the

request of the Commissioner, Ingram saw Dr. Richard L. Hester on

April 13, 1993. Ingram also saw Dr. Ramon Lopez on July 27, 1993.

Finally, Dr. Hester treated Ingram on at least a dozen occasions

after April 13, 1994. 

 

The Commissioner denied Ingram's initial claim for benefits,

as well as her claim on reconsideration. Ingram then received a

hearing before an administrative law judge (ALJ) and the ALJ

affirmed the denial of Ingram's claim. The Appeals Council

declined to review the ALJ's determination, thereby making the

ALJ's decision the final ruling of the Commissioner. The district

court then affirmed the ALJ and Ingram brought this appeal. 

DISCUSSION

"Our review of the denial of benefits is limited to

determining whether the decision is supported by substantial

evidence on the record as a whole." Groeper v. Sullivan, 932 F.2d

1234, 1237 (8th Cir. 1991). Substantial evidence is such relevant

evidence as a reasonable mind might accept as adequate to support

a conclusion. Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir.

1993). "In assessing the substantiality of the evidence, we must

consider evidence that detracts from the Secretary's decision as

well as evidence that supports it." Id. We may also reverse the

Secretary's findings if the Secretary applies an erroneous legal

standard. Nettles v. Schweiker, 714 F.2d 833, 835-36 (8th Cir.

1983). Finally, the ALJ "must minimally articulate his reasons for
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crediting or rejecting evidence of disability." Scivally v.

Sullivan, 966 F.2d 1070, 1076 (7th Cir. 1992). 

To receive disability benefits, Ingram must establish a

physical impairment lasting at least one year that prevents her

from engaging in any substantial gainful activity. Smith, 987 F.2d

at 1373. Ingram bears the burden of proof on this issue. Id. In

determining whether a claimant is disabled, the Commissioner

utilizes a five-step sequential evaluation:

First, the Secretary determines whether the claimant is

presently engaged in a `substantial gainful activity.'

Second, the Secretary analyzes whether the claimant has

a severe impairment--one that significantly limits the

claimant's physical or mental ability to perform basic

work activities. Third, the Secretary determines whether

the claimant has an impairment that meets or equals an

impairment listed in the regulations; if so, the

Secretary finds that the claimant is disabled without

considering the claimant's age, education, and work

experience. Fourth, the Secretary considers the

claimant's residual functional capacity and the physical

and mental demands of the claimant's past work to

determine whether the claimant can still perform that

work. If the claimant has the residual capacity to

perform that work, the Secretary finds that the claimant

is not disabled. Finally, if the Secretary determines

that the claimant cannot perform the past work, the

Secretary determines whether any substantial gainful

activity exists in the national economy which the

claimant can perform. 

Id. (citations omitted).

There is no dispute that Ingram meets the first two prongs of

the test, so only the third and fourth steps are at issue here.

Specifically, the ALJ determined that Ingram did not meet the

criteria of a listed impairment for purposes of step three. Add.

at 19. Under step four, the ALJ concluded that Ingram "has the

residual functional capacity to perform work-related activities

except for work involving lifting and carrying more than 20 pounds

. . . . [and her] impairments do not prevent [her] from performing
 In 1990, Dr. Brewer found Ingram was 5'0" and weighed 241

pounds. From April 1993 through November 1994, Dr. Hester found

Ingram as 5'3" and weighed between 253 and 267 pounds. In July

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her past relevant work." Id. Ingram contests both findings, as

well as the ALJ's credibility determinations.

I.

Ingram first argues that she is entitled to benefits because

she is disabled due to obesity. A woman is presumed to be disabled

due to obesity when she establishes the following medical listing:

9.09 Obesity: Weight equal to or greater than the

values specified in Table . . . II for females (100

percent above desired level), and . . .:

A. History of pain and limitation of motion in any

weight-bearing joint or the lumbosacral spine (on

physical examination) associated with findings on

medically acceptable imaging techniques of arthritis in

the affected joint or lumbosacral spine . . . .

20 C.F.R. pt. 404, subpt. P, app. 1 § 9.09. We first consider

whether Ingram meets the Table II requirements of obesity, then

determine whether she meets the criteria outlined under § 9.09A.

A.

During the ALJ hearing, Ingram testified that she weighed 240

pounds and that her height was 5'5". These measurements are

insufficient for purposes of establishing obesity under Table II,

and the ALJ found that "there is no evidence that the claimant has

met the height and weight requirements . . . for more than twelve

consecutive months . . . ." Add. at 11. It is undisputed,

however, that every examining doctor placed Ingram's height and

weight in the obesity category under Table II and that these

reports extend over a twelve-month period. In addition, no medical

evidence suggests Ingram ever failed to meet the requirements of

Table II. Indeed, the district court observed: 1
1993, Dr. Lopez found Ingram was 5'4" and weighed 258 pounds.

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Defendant relies on the fact that plaintiff testified

that she was 5'5" and weighed 240 pounds. However, the

medical evidence always shows that she was shorter and,

usually, heavier. The Step 3 determination is based on

medical evidence. Clearly, the ALJ would have been

entitled to discount her testimony if she testified that

she was shorter than medical records indicated; it would

be unfair to hold plaintiff to the height that she

testified to when medical records clearly show that her

testimony was incorrect.

Add. at 28 n.2 (citations omitted). We agree with the district

court and conclude that there is no substantial evidence in the

record to support the ALJ's determination on this issue.

Accordingly, we hold that Ingram meets the requirements of Table II

and is obese for purposes of § 9.09.

B.

Ingram must also satisfy the criteria of § 9.09A which

requires a "history of pain and limitation of motion in any weightbearing joint or the lumbosacral spine (on physical examination)

associated with findings on medically acceptable imaging techniques

of arthritis in the affected joint or lumbosacral spine." 20

C.F.R. pt. 404, subpt. P, app. 1 § 9.09A. The ALJ rejected this

portion of Ingram's claim in rather conclusory fashion. The ALJ

stated only that Ingram failed to demonstrate "the other required

secondary body system effects for the requisite time period with

the required clinical and laboratory findings specified for such a

body system by the listed impairment found in Section 9.09. . . ."

Add. at 11. The district court affirmed, holding that Ingram did

not meet any of the criteria under § 9.09A because she failed to

produce x-ray evidence of arthritis and did not establish a history
 The district court made the following comments regarding

Ingram's claim under § 9.09A:

There is no plain X ray, computerized axial

tomographic X ray or magnetic resonance imaging which

shows arthritis in knees, ankles, hips or lumbosacral

spine.

Plaintiff points to Dr. Ramon E. Lopez's X rays of

the lumbar spine showing degenerative lumbar disc disease

at L5-S1. Degenerative disc disease is not arthritis, of

course.

Plaintiff also points to an April, 1994, examination

by Dr. Richard L. Hester. . . . Dr. Hester's notes

indicate, "She has some slight pain to palpation of the

left knee. There is some slight pain with range of

motion. It's not particularly swollen or warm to touch,

either."

He also recorded laboratory findings: "X-rays of the

knee and arms are relatively unremarkable. There is

possibly some slight loss of cartilage in the knee."

It should also be noted that when plaintiff

presented to Dr. Hester in April, 1994, with complaints

of pain in both knees and hands, she indicated that this

had started bothering her just within the last several

weeks.

While Dr. Lopez recorded a reduced ranged of motion

in the hips and spine, Dr. Hester had examined her three

months before and found no limitation of motion.

Add. at 28-29 (citations omitted).

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of pain or limitation of motion. Ingram challenges these

conclusions.2

As an initial matter, we must first determine the proper legal

standard concerning the amount of pain or limitation of motion

necessary under § 9.09A because the ALJ and district court did not

do so. Section 9.09A, by its plain language, requires only a

history of pain and limitation of motion, but does not state that

a particular level of pain or limitation must be demonstrated.

Pitzer v. Sullivan, 908 F.2d 502, 505 (9th Cir. 1990) (requiring

claimant to demonstrate "disabling" pain is an "additional
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requirement" that "flies in the face of the plain language" of

§ 9.09A); Carnes v. Sullivan, 936 F.2d 1215, 1219 (11th Cir. 1991).

At least three circuit court of appeals agree that, for purposes of

§ 9.09A, a claimant need only demonstrate a minimal amount of pain

and limitation of motion. See Hughes v. Shalala, 23 F.3d 957, 959

(5th Cir. 1994) ("There is no requirement that the pain be severely

limiting [or] that the limitation of motion be marked . . . . The

listing requires only limitation of motion . . . ."); Carnes, 936

F.2d at 1219 ("The ALJ . . . imposed unjustifiable new requirements

to Listing [9.09A] by requiring Carnes to show that her arthritis

is more than minimal, and that her limitation of motion is

`significant.'"); Pitzer, 908 F.2d at 505. "Moreover, the

regulation also says that long-term obesity is usually associated

with other disorders, and it is `the advent of such disorders

[that] is the major cause of impairment.'" Pitzer, 908 F.2d at 505

(quoting 20 C.F.R. pt. 404, subpt. P, app. 1); see also Carnes, 936

F.2d at 1215. 

Indeed, the amount of x-ray evidence of arthritis necessary

for purposes of § 9.09A is identical to that necessary to demonstrate a history of pain and limitation of motion. For example,

the Eleventh Circuit holds that "an obese claimant need present no

more than evidence of minimal degenerative joint changes to meet

the required showing of `X-ray evidence of arthritis . . . .'"

Carnes, 936 F.2d at 1219; see also Hughes, 23 F.3d at 959 ("The

listing [only] requires . . . any amount of x-ray evidence of

arthritis."); Holden v. Shalala, 846 F. Supp. 662, 667-668 (N.D.

Ill. 1994) ("minimal" evidence of arthritis in knees of obese

claimant sufficient); Johnson v. Bowen, 687 F. Supp. 1284, 1307

(W.D. Wis. 1988) ("[T]he degree of severity of the arthritis

necessary to satisfy this section is very low."). "To require

[Ingram] to produce X-ray evidence of more advanced arthritis is

. . . to ignore the `profound effect of excessive weight on a

weight-bearing joint' which justifies the `relatively modest

pathological threshold' imposed . . . ." by § 9.09A. Carnes, 936

F.2d at 1219 (quoting Johnson, 687 F. Supp. at 1307). 
 Medical evidence from Dr. Hester dated July 26, 1994 through

January 3, 1995 was not submitted to the ALJ, but was made part of

the record on appeal to the Appeals Council. Admin. Tr. at 6. 

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We adopt the standard articulated by these courts that a

claimant must demonstrate only a minimal amount of pain, limitation

of motion and x-ray evidence of arthritis for purposes of § 9.09A.

Finally, we note that Ingram is not "required to show that her

symptoms of pain and limitation of motion were caused by arthritis

and not just by her obesity." Carnes, 936 F.2d at 1219; see also

Pitzer, 908 F.2d at 505.

With the appropriate legal standards now before us, we

consider Ingram's claims in turn. We first determine whether

Ingram adequately demonstrates a history of pain, limitation of

motion, and x-ray evidence of arthritis in her knees. Next, we

consider whether Ingram demonstrates such evidence in her spine.

Ingram is entitled to benefits if she makes this showing for either

her knees or her spine.

i.

Dr. Hester's initial examination in 1993, without the benefit

of an x-ray, resulted in a diagnosis of obesity and probable lumbar

muscular strain but detected no limitation of motion in Ingram's

knees. Admin. Tr. at 153. Dr. Hester's next physical examination

on April 13, 1994, however, included an x-ray of Ingram's knees and

Dr. Hester observed that Ingram suffered from "slight pain to

palpation to the left knee" and "some slight pain with range of

motion." Admin. Tr. at 164. More significantly, Dr. Hester's

assessment changed once again when he saw Ingram on July 26, 1994,

and determined that Ingram had "mild to moderate pain with range of

motion of either knee." Id. at 169. Likewise, on July 23, 1993, 3

Dr. Lopez detailed some restricted motion in Ingram's left knee.

Id. at 157.
 Ingram also argues that the x-ray evidence of Dr. Brewer

should be considered. Dr. Brewer is a chiropractor. Under the

regulations, chiropractors are not considered "acceptable medical

sources." 20 C.F.R. § 404.1513(a)(1995). Therefore, we decline to

rely on Dr. Brewer's conclusions. 

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The Commissioner accurately summarized that Dr. Hester

"consistently described [Ingram's history of pain and limitation of

motion] as only slight, mild or minimal . . . ." Appellee's Br. at

10. This statement, in light of the standard set forth above,

concedes that Ingram demonstrates a sufficient showing of pain and

limitation of motion for purposes of § 9.09A. Accordingly, we

determine that Ingram meets the pain and limitation of motion

requirement of § 9.09A for her knees.

Ingram next argues that x-ray evidence demonstrates some

arthritis in her knees. Dr. Lopez took x-rays of Ingram's knees

4

but made no observations regarding arthritis. Dr. Hester, on the

other hand, noted there was "possibly some slight loss of cartilage

in the knee" and diagnosed Ingram as having "[p]robable early

osteoarthritis of both hands and knees." Admin. Tr. at 164.

Indeed, within two days Dr. Hester diagnosed osteoarthritis, id. at

163, and ten days later he noted "exacerbat[ed] . . . osteoarthritis." Admin. Tr. at 162. Dr. Hester's diagnosis of osteoarthritis

remained essentially unchanged through Ingram's last visit with Dr.

Hester on January 3, 1995. Admin. Tr. at 172. 

Even though the Commissioner did not challenge this contention

in either her brief or during oral argument, we are reluctant to

interpret these statements as clearly articulating x-ray evidence

of some arthritis in Ingram's knees. In particular, Dr. Hester's

qualification that such arthritis is "probable," despite his

subsequent diagnosis, gives us pause. Accordingly, we remand to

the ALJ for the limited purpose of determining whether Ingram

demonstrates some x-ray evidence of arthritis in her knees. If so,

she is entitled to benefits.
 See, e.g., McGraw-Hill Concise Encyclopedia of Science and

Technology 152 (2d ed. 1989) (dividing arthritis into four groups,

including "degenerative joint disease").

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ii.

The record regarding limitation of motion in Ingram's spine is

unclear. Indeed, the district court noted a disagreement between

Dr. Hester and Dr. Lopez on this point. Add. at 29. The ALJ did

not, however, articulate specific findings concerning this

evidence. Accordingly, we remand to the ALJ to determine whether

Ingram demonstrates a history of pain and limitation of motion in

her spine. 

Dr. Lopez observed that "X-rays of the lumbar spine revealed

a first degree spondylolisthesis at L5-S1 with narrowing of the

interspace. There were also degenerative changes and sclerosis of

the facet joints at the same level." Admin. Tr. at 156. Because

no other doctor x-rayed Ingram's spine, these conclusions of Dr.

Lopez remain undisputed. Although the ALJ did not make any

specific determinations regarding this x-ray, the district court

discounted it because "[d]egenerative disc disease is not

arthritis, of course." Add. at 28. Although it appears that

degenerative disc disease is, in fact, evidence of arthritis, we

5

remand for the purpose of determining whether Dr. Lopez's x-ray

demonstrated "any amount of evidence of arthritis" in Ingram's

spine. Hughes, 23 F.3d at 959.

II.

Ingram makes an alternative argument that, even if she fails

to meet the criteria of a listed impairment due to obesity, the

ALJ's conclusion that she can return to her past relevant work is

not substantially supported by the evidence. Ingram has the burden

of demonstrating that she is unable to perform her previous work.
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Dixon v. Sullivan, 905 F.2d 237, 238 (8th Cir. 1990). When

evaluating whether a claimant can return to past work, the ALJ:

must specifically set forth the claimant's limitations,

both physical and mental, and determine how those

limitations affect the claimant's residual functional

capacity. The ALJ must also make explicit findings

regarding the actual physical and mental demands of the

claimant's past work. Then, the ALJ should compare the

claimant's residual functional capacity with the actual

demands of the past work to determine whether the

claimant is capable of performing the relevant tasks. A

conclusory determination that a claimant can perform past

work without these findings, does not constitute

substantial evidence that the claimant is able to return

to his past work. 

Groeper, 932 F.2d at 1238-39 (citations omitted). Residual

functional capacity "is not the ability merely to lift weights

occasionally in a doctor's office; it is the ability to perform the

requisite physical acts day in and day out, in the sometimes

competitive and stressful conditions in which real people work in

the real world." McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir.

1982) (en banc).

The ALJ briefly discussed Ingram's past job duties: "[T]he

claimant retains a residual functional capacity to perform her past

relevant work experience as a machine operator as she described it

and as such work is normally performed in the national economy."

Add. at 18. The ALJ relied on Ingram's description of this work as

requiring standing and walking for twelve hours a day in addition

to constant bending. Add. at 18. 

Dr. Hester and Dr. Lopez discussed Ingram's capacity to work.

Dr. Hester concluded after his first examination that Ingram could

"perform all of the work-related tasks asked of her here in the

office . . . ." Admin. Tr. at 154. As noted earlier, however, Dr.

Hester's assessment appeared to change after subsequent

examinations. Dr. Lopez concluded that Ingram "would not be able

to do work activities which require any sitting, standing, bending,
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. . . climbing, stooping, or squatting. She would be also be

unable to do any repetitive reaching or handling of objects."

Admin. Tr. at 156.

The ALJ apparently favored Dr. Hester's report and, although

it is within the ALJ's authority to resolve conflicting opinions,

Cabrnoch v. Bowen, 881 F.2d 561, 564 (8th Cir. 1989), we are unable

to determine whether the ALJ considered these reports under the

correct legal standard. See McCoy, 683 F.2d at 1147. Indeed, in

light of Dr. Hester's later reports detailing Ingram's increasing

pain and limitation of motion, there is little medical evidence

contradicting Dr. Lopez's conclusions that Ingram cannot tolerate

prolonged work. Accordingly, we remand this issue to the ALJ for

reconsideration in light of the legal standard set forth above.

III.

The ALJ made credibility assessments regarding Ingram's

alleged inability to work. An ALJ is permitted to disbelieve

subjective complaints if there are inconsistencies in the record.

Isom v. Schweiker, 711 F.2d 88, 90 (8th Cir. 1983). These

credibility assessments have support in the record.

CONCLUSION

"The decision whether to remand a case for additional

evidence, or simply to award benefits is within the discretion of

the court." Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987).

In light of our discussion, we affirm in part, reverse in part, and

remand for further proceedings consistent with this opinion.
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A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.